Raleigh Business Lawyers Answer Your
Most Frequently Asked Questions
As experienced Raleigh Business Attorneys, we are asked a lot of very good questions by business owners about the best practices in running and managing their business from a legal perspective, especially when it involves business contracts.
While there are no absolutes, we have gathered several of the most frequently asked questions we typically receive and have provided a thoughtful response that we believe will help you make the right an informed decision.
Since every situation is unique, we welcome you to reach out to us to discuss your particular circumstances. And we also welcome your feedback, feel free to use the form on this page to ask your questions, we will be updating this page periodically.
Here is the list of questions we are asked the most. Click the link to be taken directly to the answers.
What services do you provide?
How much will a good business lawyer cost me?
How do you bill?
Will there be expenses aside from your time?
Why don’t you charge a flat fee?
Do you handle matters on a contingency basis?
Do you have a policy about returning phone calls and emails?
Do you handle cases at trial?
Do I need a lawyer to start a business?
Do I need a lawyer to sell my business?
Do I need a lawyer to draft a contract?
Can’t I just use online forms from LegalZoom or Rocket Lawyer?
I never signed anything; do I have a contract?
Do I need a to hire a lawyer to collect a debt?
Do I need a lawyer if I get sued by a creditor?
What is arbitration?
Questions (and Answers) about Kurtz Law, Raleigh Business Attorneys
After over 20 years representing businesses and the people who make up those businesses, there is little we have not seen and done.
We handle a broad spectrum of business-related legal matters. This encompasses advising clients before a business entity is even formed, through formation, process implementation, contract development, employee disputes, dispute resolution and sale.
Our skillsets include fluency in non-compete, non-solicitation, confidentiality, and non-disclosure agreements (also known as NDAs).
We are also quite capable with unfair competition claims as well as unfair and deceptive trade practice actions (UDTPA).
Though our experience is deepest in construction law, we have represented folks in many different industries, and we have a great deal of experience handling lease disputes as well as evictions.
Our practice also extends to commercial collections and both the enforcement of domestic judgments and the enforcement of foreign judgments.
In addition, we represent creditors’ rights in bankruptcy. We assist our clients at all stages of the process, from consulting all the way through trial and appeal, as needed.
How much will a good business lawyer cost me?
Obviously, there is no way to tell you what an attorney will cost without at least having some idea as to the facts of your particular case. But there is plenty of information that should help you to understand what the costs will be.
For example, at Kurtz Law we bill using increments of one tenth of an hour. That is six minutes. This means that any work done on your case on any particular day will be billed a minimum of six minutes.
When we first consult about your case, we will give you our best estimate as to the amount of our time that will likely be required to complete your representation.
This is simply an estimate, but it is based on decades of experience and we do tend to have a good sense for what will be required.
That said, there can always be complicating factors: a rabid opposing party, an obstructionist opposing counsel, etc. Worse, some attorneys will not use email which ends up costing everyone time and money.
Nevertheless, we do everything in our power to keep our fees reasonable.
In some cases, we handle matters on a contingency basis. In such cases we are only paid if we recover on your behalf and our fee is a predetermined percentage of that recovered sum.
We are very particular about those cases we choose to accept on a contingency basis.
In most cases, we bill hourly. Hourly billing requires we account for our time in such a way to allow our clients to see exactly what we are doing for them. We bill in six-minute increments, tenths of an hour.
At the end of each month, I total my time spent in each case and send out bills. Typically, we hold our clients’ money in trust so that we can simply transfer the money owed from my trust account to our operating account. We then ask our client to replenish their funds in trust.
We do occasionally accept cases on contingency though this is rare, and we do it on a case by case basis.
Will there be expenses aside from your time?
Any costs associated with litigation are the client’s responsibility.
Thus, any filing fees, witness fees, records fees, etc. will be passed on directly to the client. In fact, it is against the rules of professional responsibility for an attorney to pay such fees.
We will notify you of any fees for which we reasonably believe you will be responsible for your planning purposes as soon as we are able to anticipate them.
Why don’t you charge a flat fee?
In our decades of experience, we have found that flat fees in civil litigation matters lead to conflicts that are easily avoidable. In flat fee cases, the theory is that short, easily completed matters will balance out the longer, more complex matters.
The problem is that in all easily resolved matters, folks tend to think that they have paid too much for time expended. Thus, the people whose cases are lengthy get a great deal while the people whose cases are quickly resolved feel that they were overcharged.
The easiest way we have found to avoid this undesirable outcome is to simply charge an hourly fee.
By billing hourly and meticulously accounting for our time, our clients can easily understand exactly what work we performed and how their money was allocated.
Do you handle matters on a contingency basis?
Contingency fees are fees that are calculated based on a portion of the recovery as opposed to hours worked.
We do handle some matters on a contingency basis, but we are extremely selective as to those we accept. In those cases, our fee set as a percentage of the total amount recovered on the client’s behalf. This means that we provide legal services up front and are only paid if we collect.
As a result, fees in contingency cases tend to be higher in the end than those handled on an hourly basis. But the allocation of risk and lack of upfront fees is sometimes preferred by our clients and in those cases where we feel that the claim is strong enough and valuable enough, we may offer the client the option of a contingent fee.
Costs, such as filing and services fees, will still be due from the client on a monthly basis.
Do you have a policy about returning phone calls and emails?
All emails and phone calls are to be returned within one business day unless we are unable to do so as a result of court hearings or vacations. Sometimes this means we return calls after business hours.
Should this be a problem, our clients are encouraged to please let us know. In our experience, our clients would rather receive the attention they deserve a bit late in the day as opposed to not to receive that attention promptly.
When we anticipate that we might be unavailable due to hearings or vacation, we strive to notify our clients in advance so that there is no concern surrounding any delay in the returning of client communications.
Of course, as business attorneys, we are trial lawyers.
While we always aim to resolve cases in the most favorable and least arduous way possible, sometimes cases cannot be resolved without resorting to litigation.
Both Paige and Howard have considerable trial experience gained over more the past two decades. We have handled cases in both State District and Superior Courts as well as Federal District Court.
Our business law practice has taken us to courtrooms in many of the counties of North Carolina.
General Legal Questions (and Answers) about Business & Contracts Law
Do I need a lawyer to start a business?
If you are starting a business, you should absolutely have a lawyer; though, there is no legal requirement that you have one. Yet starting a business effectively takes knowledge and experience that far exceeds even a savvy or well-educated businessperson’s level of understanding.
Proper representation of a client starting a new business requires selecting the appropriate form for the business, establishing proper business procedures and documentation, managing risks, minimizing personal liabilities, and protecting the business through skillfully drafting contracts intended to decrease the time and monies required to resolve disputes, while maximizing the likelihood of favorable resolution.
A skilled and experienced business attorney will ensure that you start with a solid foundation on which to build.
Do I need a lawyer to sell my business?
There is no legal requirement that you have a lawyer to sell a business, but it would be a tremendous mistake to attempt the sale of a business without legal counsel.
There are many permutations of business sales, but most tend to fall into three general categories, and each has its advantages and disadvantages.
Do you know what they all are?
We can help you understand the types of sales and what would be most beneficial for you. First is the asset sale. An asset sale entails the buyer purchasing the assets and only the assets from the seller.
As a result, the buyer takes possession of the assets but not the liabilities.
Next is a stock sale which entails the buyer figuratively stepping into the shoes of the seller by assuming all assets and liabilities.
Finally, mergers allow two business entities to become one by issuing new stock certificates to the surviving entity to the stockholders of the dissolving entity.
Do I need a lawyer to draft a contract?
Though a business lawyer is not legally required to draft a contract it is always a good idea to have an attorney for the drafting of any significant agreement. From a technical standpoint, a contract does not even need to be written on paper for it to be valid.
It could be just a series of scribbled notes on a cocktail napkin and yes, we have handled that case. But that doesn’t mean that it would be a good idea to try and draft your own contract. Even lawyers who do not focus on contract law get attorneys versed in contract law to help them draft their own contracts.
The contract is a prism through which all actions will be viewed. It should not only dictate the specific terms of the agreement but also provide guidance as to how matters will be handled should one party breach it. The contract itself should anticipate all foreseeable issues that might arise and provide clear guidance as to how those issues should be resolved.
Even unforeseeable issues, while impossible to know beforehand, may be addressable in such a way to minimize uncertainty and risk. Furthermore, there are tremendous pitfalls to avoid when liquidated damages clauses or non-compete agreements exist.
Securing a good contract lawyer’s advice from the start is the only prudent way to proceed.
Can’t I just use online forms from LegalZoom or Rocket Lawyer?
There is no doubt, canned forms you can get for free or on the cheap are all over the internet. So why not just download a form and draft your own lease or contract?
For one thing, most online forms are not state specific. Therefore, a form that is perfectly acceptable for much of the country may simply not be enforceable in North Carolina.
Also, is it a form for which NC has its own version?
If so, the downloaded form will not be accepted. North Carolina expects and requires certain State-wide forms as well as some local ones as well.
It is true, even attorneys will frequently use a form as a starting point.
However, the finest legal professionals will start their careers with relatively standard forms that they then modify over their career to account for changes in the law and unique situations they encounter over the years.
If you are still unconvinced, read the disclaimers on their sites. The form sites themselves make it clear that they are not responsible for any negative outcomes whatsoever.
You are on your own.
They even limit your ability to challenge them legally by requiring binding arbitration. Sometimes a few bucks saved up front can lead to massive financial exposure.
Before taking a risk with a canned form, give us a call at 919-336-4240, we can help.
I never signed anything; do I have a contract?
This may be the most misunderstood issue in all the practice of business law. We have all been conditioned to believe that a contract needs to be in writing. Except in limited circumstances, it does not.
That’s right, there is no need for a writing to exist for a contract to exist.
For a contract to exist, four things and only four things are required:
- Offer;
- Acceptance;
- Consideration; and
- A meeting of the minds
You never even have to shake hands.
A simple agreement between two parties where both parties agree as to the important terms of the offer and that offer is accepted becomes a contract the moment consideration is received.
Consideration could be money or anything of value, including the relinquishing of a legal right.
So, what are the limited circumstances when a contract must be in writing to be valid? In general, the statute of frauds requires a written contract in the following circumstances:
- Prenuptial agreements;
- Contracts that can’t be performed within one year (excluding those of indefinite duration);
- Contracts conveying an interest in real property;
- Contracts for the sale of goods over $500.00;
- Contracts where a party acts as surety or guarantees another party’s debt.
The question as to whether a contract exists is sometimes quite straightforward and can be answered readily and definitively.
Alternately, whether the contract exists and how the terms of said contract are interpreted to be can be extremely complex. Let our experience in business contracts and contract disputes answer your questions for you.
Do I need a to hire a lawyer to collect a debt?
If there is a substantial amount in question, certainly if it is over $5,000.00, it is a very good idea to have an attorney pursue the claim for you.
Though it may seem like it should be straightforward to simply collect monies to which you are owed, the truth is that the legal system is not user friendly.
Moreover, a simple mistake or misunderstanding of the rules on your part could cost you your entire claim.
At Kurtz Law we have decades of experience handling collections matters and that experience ensures that your claim will be prosecuted thoroughly and cost-effectively. It is worth noting that with small debts of less than $2,000.00 it is likely not financially feasible to hire an attorney.
Do I need a lawyer if I get sued by a creditor?
If you are sued by a creditor, you will need to make a few decisions reasonably quickly. The first decision is whether you intend to defend against the lawsuit at all. If you do not defend the suit, the creditor will seek and receive a default judgment from the Court.
A default judgment is a judgment in the creditor’s favor, requiring you pay the amount to which the Court found the creditor entitled. Simply put, it means you lose. It may seem like this would never make sense but in cases where you might need to seek bankruptcy protection, you may not bother expending any resources, either time or money, troubling with the suit, given the protection bankruptcy will afford from the judgment.
If this is a debt against which you wish to defend yourself, it is almost certainly to your benefit to have a skilled and experienced business attorney to evaluate the many potential avenues for defense. Whether the debt is defensible will hinge on a number of questions.
First, does the court have jurisdiction to hear the case? Jurisdiction is a court’s authority to hear a particular case and requires both authority over the person and the subject matter of the jurisdiction.
Is the debt still within the statute of limitations (SOL)? The SOL is a time period, generally three years on contracts, four years for the sale of goods, and ten years if a note is signed under seal; that determines how long after an event one can initiate a lawsuit.
Was the action initiated within the statute of limitations?
Are there factual defenses?
Is the debt adequately and specifically documented?
These are but a few of the facets of a collections matter that require scrutiny to determine whether a defense exists.
It may also be the case that you clearly owe the debt and that an attempt to defend would be futile. This may present a circumstance where you would also consider allowing a default judgment against you.
The reasoning would be the same, that it would not be worth expending resources to fight the inevitable. But here is the rub. It would be extremely unlikely for someone untrained in business law to know how to properly evaluate all the requirements of proof that would be required for the creditor to successfully prosecute their case.
To most folks, arbitration will seem very much like a trial. An arbitrator presides over an abbreviated proceeding that streamlines the process. Both sides present evidence and argue their cases.
The arbitrator can consider documents, witness testimony and statements of counsel, just as in a regular courtroom. The rules of evidence do not strictly apply, however. Arbitration does have its disadvantages.
Typically, arbitration provisions in contracts limit the right of a party to appeal.
Also, it may be the case that in entering a contract in the first place that arbitration was selected as the only viable method of dispute resolution.
On the positive side, it requires far less work to prepare for an arbitration than a jury trial. Arbitration is usually less expensive than taking a case to trial.
They also can be scheduled faster and require less hearing time. Finally, you may have arbitrator is skilled in that particular area of the law, saving time and effort for all of the parties.
If you find yourself in a situation where arbitration is optional, you are encouraged to consult with us as to whether to enter arbitration or pursue traditional litigation.
Similarly, should you be drafting a standard contract for your business, we would be happy to discuss the pros and cons specific to you circumstances.